Kristina Caggiano Kelly

Overview

Kristina Caggiano Kelly is a director in Sterne Kessler’s Trial & Appellate Practice Group, representing clients in all stages of litigation before the PTAB, International Trade Commission, district courts, Federal Circuit, and Supreme Court. She has experience in both inter partes disputes and patent prosecution in a wide variety of technological areas, including Hatch-Waxman filings, interference practice, and opinion work.

Before joining Sterne Kessler, Kristina practiced intellectual property law, as well as government contracts, administrative law, and other complex commercial litigation. She also has experience representing veterans in pro bono matters before the Court of Appeals for Veterans’ Claims.

Kristina also served in an 18-month clerkship for the Honorable Sharon Prost, United States Court of Appeals for the Federal Circuit.

Kristina has industry experience in drug design and development, interning for Biogen, Inc., in Cambridge, MA, and worked as an assistant researcher in the Molecular Genetics, Microbiology, and Immunology Department at Robert Wood University Hospital.

Kristina received her J.D., Wharton Certificate in Business and Public Policy, from the University of Pennsylvania School of Law, her B.A. in molecular biology and biochemistry from Rutgers University, Henry Rutgers honors, and her B.A. in philosophy from Rutgers University, with the highest departmental honors.

Representative Matters

Intellectual Property Litigation

• In re Certain Electrical Connectors, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1043 (ITC 2018): Commission investigation regarding patented tine plates for automotive electrical connectors.
• In re Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067 (ITC 2018): Commission investigation and enforcement of exclusion order against infringing road milling machines.
• In re Certain LED Lighting Devices, LED Power Supplies, and Components Thereof, Inv. No. 337-TA-1081 (ITC 2019): defending importer of LED lamps against alleged 337 violation.
• Luminara Worldwide LLC v. Iancu, No 2017-1629 (Fed. Cir. 2018); overturned PTAB interpretation of 35 U.S.C. 315(b) and secured holding that an adverse petition for inter partes review was time-barred.
• Howmedica Osteonics Corp. v. Zimmer, Inc., No. 15-1232 (Fed. Cir. 2016): defending trial victory on claim construction and doctrine of equivalents in patent infringement action involving prosthetic hip implants.
• BioMedical Enterprises, Inc., v. Solana Surgical LLC, Case No. 1:14-cv-95 (W.D. Tex. 2016); IPR2015-786 (PTAB 2016): patent infringement litigation and parallel IPR involving surgical compression staples.
• CardSoft LLC v. Verifone Inc., S.Ct. No. 14-1160 (2015): “GVR” petition granted by the United States Supreme Court vacating and remanding Federal Circuit claim construction of patent term “virtual machine” under clarified standard of review.
• United Access Technologies, LLC, v. CenturyTel Broadband Services, LLC, No. 2014-1347 (Fed. Cir. 2015); No. 1:11-cv-339 (D. Del. 2016); patent infringement litigation challenging the scope of collateral estoppel for prior jury verdict involving ADSL broadband internet services.
• Anglefix, LLC v. Wright Medical Technology, Inc., No. 2:13-cv-2407 (W.D. Tenn. 2016); IPR 2014-626 (PTAB 2015): patent infringement action and parallel IPR proceeding involving multi-angle fixation bone screws.
• Commonwealth Scientific and Industrial Research Org. v. Cisco Systems, Inc., Case No. 15-1066 (Fed. Cir. 2015); No. 6:11-cv-343 (E.D. Tex. 2014): patent infringement trial and appeal challenging damages award for technology implementing 802.11 standards for wireless LAN technology.
• EON Corp. IP Holdings LLC v. AT&T Mobility LLC, Case No. 14-1392 (Fed. Cir. 2015): Patent appeal defending trial victory based on indefiniteness of computer-implemented means-plus-function claims reciting special programming for general purpose controllers.
• Garnet Digital, LLC v. Yamaha Corp., No. 6:13-cv-00655 (E.D. Tex. 2014): Patent infringement action resolved on summary judgment in favor of client makers of internet media sharing devices.
• SAP America, Inc., v. Versata Software, Inc., S.Ct. No. 13-716 (2014): Amicus brief supporting petitioners challenge to Federal Circuit application of Daubert to expert testimony in assessing patent damages.
• Browning v. Sturm, Ruger & Co., Inc., No. 1:13-cv-00013-CW (C.D. Ut. 2014): Patent infringement and trade secret misappropriation involving offset rotary magazines for rifles, favorably resolved through mediation.
• In re Certain Sintered Rare Earth Magnets, Inv. No. 337-TA-855 (ITC 2013): Commission investigation of alleged Section 337 violation by import of motors and motor components accused of patent infringement.
• Aspex Eyewear Inc. v. Zenni Optical, LLC, Case No. 2012-1318 (Fed. Cir. 2013): Patent appeal defending trial victory against collaterally estopped infringement claims regarding magnetically attached auxiliary frames for prescription eyeglasses.
• LaserDynamics v. Quanta Computer, Inc., Case No. 11-1440, -1470 (Fed. Cir. 2012); LaserDynamics v. Quanta Computer, Inc., Case No. 06-cv-0348 (E.D. Tex. 2011): Patent infringement action against optical disc drives with multipurpose disc recognition capability.
• Apeldyn Corp. v. AU Optronics and Chi Mei Optoelectronics Corp., Case No. 08-cv-568 (D. Del. 2011): Patent infringement action regarding liquid crystal retarder switches in LCD display screens.
• Affinity Labs of Texas, LLC. v. Volkswagen Group of America, Case No. 2011-1365 (Fed. Cir. 2011); Case No. 08-cv-0164 (E.D. Tex. 2011): Infringement action directed to Affinity Lab’s patented stereo systems with integrated portable digital audio devices.
• Digital Impact, Inc. v. Bigfoot Interactive, Inc., (Fed. Cir. 2009): Patent infringement action against divided infringement claim involving an Internet-based business-method patent.

Hatch-Waxman Litigation

• Allergan, Inc. v. Teva Pharm. USA, Inc., No. 2:15-cv-1455 (E.D. Tex. 2017); Case No. 18-1130 (Fed. Cir. 2018): defending ANDA for generic cyclosporine ophthalmic emulsion drops (RESTASIS®), invalidating the asserted patents as obvious and opposing claims that the patents are subject to sovereign immunity after being assigned to the St. Regis Mohawk tribe.
• Warner Chilcott (US), LLC v. Teva Pharm. USA, Inc., 2:15-cv-1471 (E.D. Tex. 2017); Case No. 18-1241 (Fed. Cir. 2018): defending ANDA for generic mesalamine delayed-release capsules (DELZICOL®) on summary judgment.
• IBSA Institut Biochimique, S.A. v. Teva Pharm. USA, Inc., 1:18-cv-555 (D. Del. 2019): invalidating patent to levothyroxine sodium (TIROSINT®) as indefinite at Markman stage.
• HZNP Meds. LLC v. Actavis Labs. UT, Inc., 17-2149 (Fed. Cir. 2019): defending trial victory refuting infringement claims for generic diclofenac sodium topical solution (PENNSAID®).
• Mylan Pharmaceuticals Inc., v. Eurand Inc., S.Ct. No. 12-514 (2013): Brief of amicus Generic Pharmaceutical Association supporting Mylan challenge to Federal Circuit standard for bioequivalent follow-on drugs.
• Federal Trade Commission v. Actavis, Inc., S.Ct. No 12-416 (2013): Representing amici supporting respondent position that so-called “reverse payments” settling Hatch-Waxman litigation are not anti-competitive.
• Aventis Pharma S.A. and Sanofi-Aventis U.S., LLC v. Hospira, Inc., (Fed. Cir. 2012): Aventis Pharma S.A. and Sanofi-Aventis U.S. LLC v. Apotex Inc. and Apotex Corp., Case No. 08-496 (GMS) (D. Del. 2010): Patent infringement action and subsequent appeal regarding Apotex’s ANDA to make a generic version of Sanofi-Aventis’ anti-cancer product TAXOTERE® (docetaxel).
• Allergan, Inc. v. Sandoz Inc., Case No. 09-097 (E.D. Tex. 2010): Patent infringement action regarding Sandoz’s ANDA to make a generic version of Allergan’s eye pressure drops COMBIGAN® (brimonidine tartrate/timolol maleat).

Government Contracting and Administrative Law

• Ingham Regional Med. Center v. United States, No. 2016-2081 (Fed. Cir. 2017); overturned Court of Federal Claims’ dismissal for failure to state a claim in class action breach of contract regarding Tricare underpayments to hospitals.
• United States v. MWI Corp., S.Ct. No. 16-361 (2017) challenging D.C. Circuit holding on the scope of liability for government contractors under the False Claims Act in light of the scienter analysis of Halo Electronics.
• Kingdomware Techs. Inc., v. United States, S.Ct. No. 14-916 (2016): Representing 18 veteran and service-disabled veteran-owned businesses and organizations as amici before the United States Supreme Court in overturning agency interpretation of statutorily-mandated government contracting quotas.
• United States v. SunRise Academy, Case No. 13-3071 (D.C. Cir. 2015): Forfeiture appeal regarding standing of third party victim to challenge a criminal forfeiture order through an ancillary civil proceeding.
• Fed. Home Loan Mortgage Corp. v. Deloitte, No. 1:15-mc-22175 (S.D. Fla. 2015); SEC v. Syron, No. 11-cv-9201 (S.D.N.Y. 2016); SEC v. Mudd, No. 11-cv-9202 (S.D.N.Y. 2016); defending conservator Federal Housing Finance Agency in administrative enforcement proceeding re Fannie Mae and Freddie Mac oversight.
• Hammer v. McDonald, Case No. 13-2263 (USCAVC 2015): Obtained requested relief on behalf of a pro bono Vietnam War veteran in appeal of denial of benefits for service-connected hearing loss and tinnitus.
• Amy Mitchell v. MSPB, No. 13-3056 (Fed. Cir. 2013): Appeal of federal employee termination based on statutory and regulatory interpretation of agency jurisdiction, oral argument available at 2013-3056.mp3.

Education

• J.D., Wharton Certificate in Business and Public Policy, University of Pennsylvania Carey Law School
• B.A., Molecular Biology and Biochemistry, Rutgers University, Henry Rutgers honors
• B.A., Philosophy, Rutgers University, highest departmental honors

Clerkships

• U.S. Court of Appeals for the Federal Circuit